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22 may 2019

Political Points of the CPLR for 13–20 May 2019

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to doboni@pravo.org.ua.


Political Points for 13–20 May 2019

There are no constitutional grounds for early termination of the powers of the Verkhovna Rada of Ukraine

1. CPLR expert opinion

President Volodymyr Zelensky has no constitutional grounds for early termination of the powers of the Verkhovna Rada of Ukraine of the VIII convocation.

2. Respective authorities counter-point/argument

The newly elected President of Ukraine Volodymyr Zelensky took office on May 20, 2019 after taking an oath, and in his speech he announced the "dissolution" of the current composition of the Parliament. A Decree of the President of Ukraine "On Early Termination of the Powers of the Verkhovna Rada of Ukraine" is expected, which will come into force on the day of its official publication.

Extraordinary elections to the Verkhovna Rada of Ukraine shall be appointed by the President within 60 days from the date of publication of the Decree "On Early Termination of the Powers of the Verkhovna Rada of Ukraine".

3. CPLR assessment of the authorities counter-point

The newly elected President Volodymyr Zelensky, has the right to dissolve the Verkhovna Rada of Ukraine upon the presence of constitutional grounds for early termination of its powers since his entry into office from May 20 until May 27, that is, before this right can no longer be exercised, as during the last 6 months of the term of office of the Parliament it is not possible to terminate its powers earlier.

Obviously, the only probable case for early termination of the powers of the Verkhovna Rada of Ukraine may be the absence of a parliamentary majority and the inability to create a new one within a month term after its termination (Article 90 of the Constitution of Ukraine).

The Chairman of The Verkhovna Rada of Ukraine announced the termination of the parliamentary majority on May 17. Consequently, the Verkhovna Rada of Ukraine has the time until June 16 to form a new parliamentary majority. Therefore, the President will have constitutional grounds to terminate the powers of the Parliament of the VIII convocation only after June 16, and provided that such a majority is not created. However, such a ground for dissolution can not be applied due to restrictions on the right to dissolution 6 months before the expiration of the term of office of the Verkhovna Rada of Ukraine.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Resolution of the Verkhovna Rada of Ukraine "On the Procedure for Holding a Ceremonial Session of the Verkhovna Rada of Ukraine Devoted to the Oath of Office of the Newly Elected President of Ukraine"

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.

We call on the newly elected President of Ukraine, as the guarantor of the observance of the Constitution of Ukraine, to act only within the limits of his constitutional powers and, accordingly, to refrain from terminating the powers of the Verkhovna Rada of Ukraine of the VIII convocation in an unconstitutional manner in the absence of grounds for this.

In case of publication of the relevant Decree, at least 45 MPs should raise the issue of its constitutionality before the Constitutional Court of Ukraine.

 

Another aggravation of the "personnel" crisis in the HQCJ

1. CPLR expert opinion

As reported by the CPLR experts in the political points for April 1 – 8, 2019, various persons by their actions create the grounds for considering the current composition of the High Qualifications Commission of Judges of Ukraine (HQCJ) to be unlawful. The new phase of the "personnel" crisis was caused by the Kyiv District Administrative Court, which on May 15, 2019 applied the measures to enforce the claims by establishing:

  • prohibition for S. Kozyakov to exercise his powers of a HQCJ member. The court also adopted a decision, which established the termination of authority of a HQCJ member from October 25, 2018;
  • obligation on the HQCJ Chairman to immediately adopt a decree on the inclusion of S. Ostapets to the HQCJ in connection with the termination of the powers of the HQCJ member S. Shchotka. The decision has not been found in the Unified State Register of Judicial Decisions.

There are grounds to state that the uncertainty surrounding the legislative regulation of the term of office of the HQCJ members appointed in 2014 is used to destabilize the work of this body, to strengthen its dependence, and possibly, in this way to create the legal basis for the abolition of the results of the competitive selection to the High Anticorruption Court, the second selection to the Supreme Court and the qualification assessment of individual judges, as these procedures were conducted with the participation of the HQCJ members, whose term of office is currently being challenged in court.

2. Respective authorities counter-point/argument

The HQCJ reacted to the said court decisions, stating that "the documents available in the Commission indicate otherwise, that is, it can be assumed that the HQCJ did not agree with the court's conclusions on the expiration of the term of office of S. Kozyakov and S. Shchotka. In this case, the communication contains a reference to the decision of the District Administrative Court of Kyiv dated March 25, 2019 in the case No. 640/2620/19, in which the court found that the term of office of S. Shchotka expires on December 5, 2020, and refused to satisfy the claim requirements for recognition of his termination of powers from December 5, 2018. The notice also refers to the decision of the Administrative Court of Cassation under the Supreme Court of Ukraine dated April 25, 2019 in the case No.9901/66/19, whereby the court confirmed the conclusion about the 6 years’ term of office of S. Kozyakov and S. Shchotka. These decisions have not yet come into effect.

In addition, in the explanations dated March 15, 2019 in the case No. 640/2620/19, the representative of the State Judicial Administration of Ukraine argued that the term of office of S. Shchotka is six years from the date of his appointment. However, a few days earlier, on March 12, 2019, the Chairman of the SJA of Ukraine announced a competitive selection for a position of the Commission member, and on May 6, 2019, appointed S. Ostapets as a HQCJ member and terminated the powers of S. Shchotka. That is, for the purposes of considering a separate court case, the SJA of Ukraine took one position, and subsequently changed it radically.

The massive receipt of administrative claims relating to the term of office of the HQCJ members has been observed since February 2019. In particular, on February 15, 2019, claims were received by the District Administrative Court of Kyiv regarding the recognition of the termination of powers of S. Kozyakov, S. Shchotka and T. Veselska. In April, claims were received on the recognition of the termination of powers in relation to 5 more members of the HQCJ (A. Zaritska, M. Makarchuk, M. Mishyn, Y. Titova, V. Ustymenko). Before that, the issue of the term of authority of individual HQCJ members has not been considered by the court.

That is, currently the District Administrative Court of Kyiv decides on the fate of the HQCJ members and to a large extent, on the legitimacy of its procedures. That is why, the fact that   in April 2019, 30 judges of this court did not appear to pass the exam in the framework of the qualification evaluation procedure, does not seem to be coincidental.

3. CPLR assessment of the authorities counter-point

Decisions in cases No. 640/2620/19 and No.9901/66/19, which are referred to in the communication of the HQCJ, have not yet come into force. At the same time, a decision on taking measures to enforce the claim is executed immediately from the date of its adoption, regardless of the appeal (Part 1 of Article 156 of the Code of Administrative Procedures of Ukraine). That is, since the adoption of the said decision, S. Kozyakov and S. Shchotka can not exercise the powers of the HQCJ.

At the same time, the practice of enforcing claims in the way that the Regional Administrative Court of Kyiv did, in particular regarding the inclusion of a new member to the HQCJ, is non-typical and may also lead to the illegitimacy of the procedures with the participation of this new member if the court subsequently establishes his/her lack of authority. That is, enforcing the claim in this way has a manipulative nature and indicates the politicization of the work of this court.

Application of negative measures in relation to the judges of the District Administrative Court of Kyiv, for example, during a qualification assessment, may be presented by them as a revenge for specific decisions.

4. Related legislation/instructions which require the authorities act in a certain manner

In accordance with Part 2 of Article 92 of the Law "On the Judicial System and Status of Judges" (in the wording that existed at the time of the appointment of the HQCJ members in 2014 - at the beginning of 2015), the term of authority of a HQCJ member was 6 years.

In accordance with subparagraph 5 of paragraph 5 of Section II of the Final and Transitional Provisions of the Law "On Ensuring the Right to a Fair Trial" dated February 12, 2015, the members of the HQCJ appointed by the Minister of Justice of Ukraine and the Chairman of the SJA of Ukraine, exercise their powers within 4 years from the date of appointment to office.

According to paragraph 26 of the Final and Transitional Provisions of the Law "On the Judicial System and Status of Judges" dated 02.06.2016, the HQCJ members exercise their powers until the expiration of their term of appointment.

Therefore, there is an obvious conflict between the provisions of the laws that define the terms of office of the HQCJ members, appointed in 2014 - at the beginning of 2015.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Given the length and the different scenarios for disputes regarding the term of office of the HQCJ members in courts, the mutual dependence of judges and members of the HQCJ, and also due to numerous problems in the work of the HQCJ during the competitive selection to the Supreme Court and within the framework of the qualification assessment, the best way would be to re-launch this body. Consideration should be given to the possibility of reorganizing the HQCJ so that during the period of the reform, more civil society representatives (human rights defenders, journalists, representatives of specialized NGOs) are included in the bodies for the selection and evaluation of judges, than the judges themselves. Participation of representatives of international organizations in the activities of such bodies will increase the transparency and credibility of the process from the perspective of international community (this recommendation was expressed in the Political Points for April 1 – 8, 2019).

As for immediate response, the HQCJ members, whose term of office is the subject of the court consideration, should refrain from participating in the procedures conducted by the Commission. It is expedient to consider the activity of judges of the District Administrative Court of Kyiv within the framework of disciplinary procedures.

 

President of Ukraine appointed two members of the High Council of Justice, bypassing the court injunction

1. CPLR expert opinion

On March 11, 2019, the President of Ukraine signed Decree No.65/2019, which defined the procedure for conducting an open competition for the appointment of members of the High Council of Justice (HCJ) under the quota of the President of Ukraine and the composition of the relevant Selection Commission.

On April 22, 2019, the District Administrative Court of Kyiv satisfied a claim to secure a lawsuit regarding the prohibition to the Commission to submit recommendations to the President on the appointment of any candidates. The court grounded its decision on the fact that failure to take appropriate measures could significantly impede or make it impossible to enforce a court decision, jeopardize the effective protection and restoration of the violated rights and interests of the claimant for which he/she was seeking protection.

However, on May 11, 2019, the President abandoned this injunction by amending his decree of 11.03.2019. On May 13, 2019, the head of state appointed A. V. Vasylenko and M. G. Isakov to the positions of the HCJ members.

2. Respective authorities counter-point/argument

According to the wording of the Decree dated May 11, 2019 on amending the Presidential Decree of March 11, 2019, No. 65, if the commission for any reason can not recommend candidates for appointment, all candidates included in the list of persons subject for a special check, shall be considered as recommended. The President is entitled to appoint any of the candidates recommended in this way as a member of the HCJ.

Thus, the President has got a possibility to appoint members of the HCJ at his quota, formally not violating the injunction.

3. CPLR assessment of the authorities counter-point

In the opinion of the CPLR experts, the appointment of A.V. Vasylenko and M.G. Isakov as the HCJ members is a political appointment aimed at preserving the influence of the former President's Petro Poroshenko team, on the key authority in the system of judiciary governance. This is confirmed by the facts that, in particular, the HCJ members were appointed without a competition, a week before the end of the powers of President Poroshenko, and bypassing the court injunction. At the same time, the very fact of imposing a court injunction aimed at preventing the President from exercising his powers, as well as a number of other dubious resonance judgments of the District Administrative Court of Kyiv during the last month (regarding the nationalization of Privatbank, the termination of the powers of the HQCJ members, etc.) indicate that this the court is a politicized body.

4. Related legislation/instructions which require the authorities act in a certain manner

According to Art. 131 of the Constitution of Ukraine, the HCJ consists of twenty one members, of which 10 are elected by the Congress of Judges of Ukraine from among current judges or retired judges, 2 are appointed by the President of Ukraine, 2 are elected by the Verkhovna Rada of Ukraine, 2 are elected by the Congress of Advocates of Ukraine, 2 are elected by the All-Ukrainian Conference of Prosecutors, 2 are elected by the Congress of Representatives of Legal Higher Educational Establishments and Scientific Institutions. The Chairman of the Supreme Court is a member of the HCJ based on the position.

The procedure for the appointment of the HCJ members at the quota of the President is determined by the Law "On the High Council of Justice". According to this procedure, for the purpose of appointment by the President of the HCJ member, an announcement about holding of an open competition is posted on the Official Presidential website. Regulations on conducting an open competition for the appointment by the President of the HCJ members are approved by the President of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The appointment of newly elected HCJ members in a political way indicates that the key body in the system of judicial governance remains primarily a political instrument. Under such conditions, it is not capable of ensuring the independence of the judicial system. In view of this, it is advisable to amend the Constitution of Ukraine as to the way of forming this body. We believe that, under the current conditions, not less than half of this body should be appointed on the basis of public opinion. The specific method of public participation can be determined taking into account the experience of electing members of the Public Council of Integrity and the Public Council of International Experts. If the constitutional amendments can not be achieved, the law should provide for mandatory verification of the integrity of the candidates for the post of HCJ members. Currently, candidates for the HCJ members are only subject to a special check.

 

Law on Improving the Activities of the State Bureau of Investigations has been approved

1. CPLR expert opinion

On May 17, the Verkhovna Rada of Ukraine adopted in general, and on May 18, the President of Ukraine signed Law No. 5395-d, aimed at increasing the efficiency of the work of the State Bureau of Investigations.

This Law allows the SBI to form its own operational units, in particular on operational and technical activities and personal security.

However, the adopted Law contains a controversial provision: it stipulates special titles for the SBI officials, but there is no defined list of positions that require the assignment of these titles. In other words, the decision making on this issue remains at the discretion of the Director of the SBI and his deputies. It should be reminded that initially the SBI was planned as an exclusively "civil" body.

2. Respective authorities counter-point/argument

The State Bureau of Investigations announced the competitive selection for the relevant posts in the operational units immediately after the Law came into force.

3. CPLR assessment of the authorities counter-point

The decision of the management of the SBI on the immediate launch of the competitive selection of operational staff will quickly improve the efficiency of the body.

4. Related legislation/instructions which require the authorities act in a certain manner

The Constitution of Ukraine, the Law of Ukraine "On the State Bureau of Investigations"

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The SBI management should determine that special titles to be assigned only to employees of operational and technical units and personal security units.

All Political Points

Попередня новина 23 july 2019
Наступна новина 15 may 2019